SADASHIVAPPA GANGAPPA Vs. SANGAPPA CHANVIRAPPA MAHAMADKOTI

JUDGEMENT

(1.) This is an appeal by the defendants against the decree of the First Class Subordinate Judge, Bijapur, in favour of the plaintiff-respondent declaring that the decree in suit No. 184 ol 1916 was not binding on the plaintiff-respondent.

(2.) The relevant facts are shortly as follows. On September 22, 1903, the deceased Chanvirappa, father of the plaintiff-respondent, and one Mahalingappa Katti purchased certain land under a registered sale-deed. It is the case for the defendants-appellants that Chanvirappa was benami for themselves, that the money came from the appellants father Gangappa in a shop in which both had a certain interest. In 1916 the appellants father Gangappa brought a suit No. 184 of 1916, impleading as defendants No. 1 the uncle of the present plaintiff- respondent, No. 2 his cousin, No, 3 being the plaintiff-respondent himself by his mother Madivalava as guardian, No. 4 being the auction-purchaser Mahalingapppa. The plaintiff-respondent was then, even according to the appellants, aged fifteen. That suit was referred to arbitration by the parties by a reference which was made without the sanction of the Court. And the award, Exhibit 78, was in favour of Gangappa, the father of the appellants. On this award a decree was passed on September 29, 1917, in favour of Gangappa, the father of the appellants, and the plaintiff in that suit. On October 15, 1923, the present plaintiff, who was born on October 10, 1900, instituted the present suit to set aside that decree. The grounds set forth on his behalf were, first, fraud; second, negligence; and, third, want of sanction of the Court necessary under Order XXXII, Rule 7, in respect of the reference. The defendants-appellants denied these allegations, and raised the plea of limitation. The trial Court held that fraud was not proved, but negligence only on the part of the mother of the plaintiff- respondent, but on the third point held that the reference, the award, and the decree passed in terms of the award were void for want of the necessary sanction of the Court to the reference under Order XXXII, Rule 7, of the Code of Civil Procedure. On the question of limitation it held that the suit was not barred, Article 120 applied, and the right to sue accrued when the plaintiff first came to know of the decree.

(3.) The finding of negligence has not been seriously questioned before us, nor the view of the trial Court on the ground based oh Order XXXII, Rule 7, Civil Procedure Code. On the question of limitation, however, it is argued, even if Art. 120 applies, the right to sue accrued and time began to run from the date of the decree, i.e., September 29, 1917, more than six years before the present suit, instituted on October 16, 1923, so that the suit was barred by limitation. It was pointed out that wherever the Legislature intended that time should begin to run from the date of knowledge of the plaintiff, such as in Articles 90, 91, and 92, the Legislature has expressly sO enacted in these Articles, which is not the case in Art. 120.